Akinfolarin v. Garland ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 24, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
GRACE O. AKINFOLARIN,
Petitioner,
v. No. 20-9547
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before MATHESON, BRISCOE, and CARSON, Circuit Judges.
_________________________________
Grace O. Akinfolarin, a native and citizen of Nigeria, applied for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”)
based on her religion and membership in particular social groups. The immigration

On March 11, 2021, Merrick B. Garland became Attorney General of the
United States. His name has been substituted for William P. Barr as Respondent, per
Fed. R. App. P. 43(c)(2).
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
judge (“IJ”) denied relief, and the Board of Immigration Appeals (“Board” or “BIA”)
dismissed the appeal. Ms. Akinfolarin now petitions for review of the Board’s
decision. Exercising jurisdiction under 8 U.S.C. § 1252(a), we dismiss the petition in
part and deny it in part.
I. BACKGROUND
A. Legal Background
To succeed with an asylum claim, a petitioner must establish that she is a
refugee. See 8 U.S.C. § 1158(b)(1)(A). A refugee is a person who is “unable or
unwilling to return to the country of origin ‘because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Rivera-Barrientos v. Holder, 666 F.3d
641, 645-46 (10th Cir. 2012) (quoting 8 U.S.C. § 1101(a)(42)(A)) (emphasis
omitted). “Persecution is the infliction of suffering or harm upon those who differ
. . . in a way regarded as offensive and must entail more than just restrictions or
threats to life and liberty.” Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011)
(quotations omitted). “[P]ersecution may be inflicted by the government itself, or by
a non-governmental group that the government is unwilling or unable to control.” Id.(quotations omitted).
“The showing required for withholding of removal is more stringent tha[n] the
showing required for asylum.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233
(10th Cir. 2012). “To be eligible for withholding of removal, an applicant must
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demonstrate that there is a clear probability of persecution because of [her] race,
religion, nationality, membership in a particular social group, or political opinion.”
Id. (quotations omitted). If an applicant “fails to satisfy the lower burden of proof
required for asylum, [s]he also fails to satisfy the higher standard of eligibility for
withholding of removal.” Id. at 1234.
Finally, “[t]o be eligible for relief under the CAT, an individual must establish
that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” Id. at 1233-34 (quotations omitted). “Torture” is
“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted” for certain purposes “by or at the instigation of or with the
consent or acquiescence of a public official acting in an official capacity or other
person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
B. Factual and Procedural Background
Ms. Akinfolarin is a Christian. She fears harm from a secret society called the
Ogboni Fraternity, which counted her father as a member.
In May 2018, her father took her to the Ogboni shrine, where she was required
to participate in a ritual with persons dressed in white. Four months later, her father
died. Ms. Akinfolarin intended to give him a Christian burial, but Ogboni Fraternity
members disrupted the burial and started to take the body. When she attempted to
prevent them, they threatened her and then beat her with a horsewhip, chairs, and
broken bottles. Ms. Akinfolarin awoke in the hospital, where she remained for a
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week because of her injuries. While she was unconscious, the Ogboni had absconded
with her father’s body.
Ms. Akinfolarin’s pastor reported the attack. Two police officers visited the
hospital to take her statement. She recognized them as Ogboni members from the
May ritual and from Ogboni rings they were wearing. Although Ms. Akinfolarin was
frightened, she gave her statement. The officers said they would investigate, but she
does not know whether they did. Her father’s body was not returned.
After Ms. Akinfolarin left the hospital, the Ogboni wrote to her that her father
had pledged her as his replacement, and she had no choice but to join. Her pastor
advised her to engage in a prayer vigil. During her vigil, a group of persons dressed
in white surrounded her house, chanting and singing. She and her son fled for the
church. Their house was burned down that night. Ogboni members also threatened
the church if it did not release her to them.
The church helped her to relocate to Lagos, but strangers came looking for her
at her new church. Her pastors helped her flee from Nigeria to Venezuela. After
some time in Venezuela and Mexico, she arrived in the United States, where she
immediately sought asylum.
Ms. Akinfolarin represented herself at her hearing before the IJ. After
listening to her testimony, the IJ concluded she was credible and the harm she
described rose to the level of persecution. But he further held that Ms. Akinfolarin
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had failed to establish that the harm she suffered was “on account of” of a protected
ground, as required for asylum.
The IJ first examined whether the harm was on account of being a member of a
particular social group. Ms. Akinfolarin, proceeding pro se, had not defined any
particular social group, but the IJ identified the following two groups:
(1) “individuals in Nigeria whose fathers have died and the Ogboni Fraternity wants
them to take their place,” and (2) “individuals that attempted to stop the Ogboni
Fraternity from burying or attending to a member in a manner consistent with their
traditions.” Admin. R. at 68.1 The IJ held that these groups were not cognizable
“particular social groups” because the record did not show that they are socially
distinct. See Rodas-Orellana v. Holder, 780 F.3d 982, 990-91 (10th Cir. 2015)
(requiring that a cognizable “particular social group” have immutability,
particularity, and social distinction).
The IJ next examined whether the harm was on account of Ms. Akinfolarin’s
Christian religion. While recognizing that the Ogboni had harmed Ms. Akinfolarin
and threatened her, he held that “there simply is insufficient evidence in the record
that the Ogboni were motivated to harm [her] because of her religious beliefs. . . .
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During the hearing, the IJ also referred to a group of “individuals that are
opposed to joining the Ogboni Fraternity,” Admin. R. at 123, but the IJ’s oral
decision did not address that group. Ms. Akinfolarin did not request consideration of
that group before the Board, and the Board’s decision addressed only the groups
identified in the IJ’s oral decision. We consider only the groups the Board addressed.
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While [her] Christianity may be the reason why she does not want to participate,
there is insufficient evidence that [her] Christianity was the reason that the Ogboni
sought to harm her.” Admin. R. at 69. “Rather, the evidence in the record indicates
it is the Ogboni’s desire to have her join their organization [that] is the reason that
they were harassing her.” Id. at 69-70.
The IJ further determined that there was insufficient evidence to conclude that
the government of Nigeria was unable or unwilling to protect Ms. Akinfolarin. The
IJ noted Ms. Akinfolarin’s belief that many Ogboni members were in the police
force, but held that the record did not support that belief.
Because Ms. Akinfolarin failed to satisfy the standards for asylum, the IJ also
denied withholding of removal. As for CAT relief, the IJ held that the record was
insufficient to determine that Ms. Akinfolarin would likely be tortured “by or at the
instigation of or with the consent or acquiescence of a public official or person acting
in an official capacity.” Id. at 72.
Ms. Akinfolarin obtained counsel for her appeal to the Board. In a brief
one-member order, the Board affirmed the IJ’s determinations and dismissed the
appeal. Represented by different counsel before this court, Ms. Akinfolarin now
petitions for review of the Board’s decision.
II. DISCUSSION
“When a single member of the BIA issues a brief order affirming an IJ’s
decision, this court reviews both the decision of the BIA and any parts of the IJ’s
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decision relied on by the BIA in reaching its conclusion.” Dallakoti v. Holder,
619 F.3d 1264, 1267 (10th Cir. 2010) (quotations omitted). We review legal
conclusions de novo and factual findings for substantial evidence. Id. Under the
substantial-evidence standard, “[t]he agency’s ‘findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.’”
Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)).
A. Asylum
Failure to Develop the Record
In arguing that the agency erred in analyzing whether she was harmed on
account of a protected ground, Ms. Akinfolarin first asserts that the IJ failed to create
a full factual record at the hearing. She asserts that “there are, arguably,
constitutional and statutory due process responsibilities that require[] the IJ to
adequately develop the record on particular social group, especially when the
Petitioner is pro se.” Pet’r Br. at 13.
As Ms. Akinfolarin concedes, however, she did not raise this argument before
the Board. This court generally lacks jurisdiction to consider arguments that the
petitioner did not first raise before the Board. See 8 U.S.C. § 1252(d)(1);
Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010). And although
there is an exception for constitutional questions, “objections to procedural errors or
defects that the BIA could have remedied must be exhausted even if the alien later
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attempts to frame them in terms of constitutional due process on judicial review.”
Vicente-Elias v. Mukasey, 532 F.3d 1086, 1094 (10th Cir. 2008).
Ms. Akinfolarin’s argument that the IJ failed to adequately develop the record
is a procedural defect that the Board could have remedied. Because she did not raise
the argument before the Board, we do not have jurisdiction to consider it. Cf.
Soberanes v. Comfort, 388 F.3d 1305, 1309 (10th Cir. 2004) (“[P]etitioner’s
complaints about omissions by counsel and associated inadequacies in his evidentiary
and review proceedings fall within the [jurisdictional] prohibition.”).
Error in Formulating Particular Social Groups
As described above, because Ms. Akinfolarin proceeded pro se, the IJ
identified two potential social groups for her. She argues that he erred in formulating
“very narrow, odd renditions of particular social groups” and instead “should have
identified particular social groups within existing standards.” Pet’r Br. at 17. But as
with her first argument, we lack jurisdiction consider this argument because she did
not raise it before the Board. See § 1252(d)(1); Garcia-Carbajal, 625 F.3d at 1237.
Persecution on Account of Membership in a Particular Social Group
Ms. Akinfolarin next argues that the agency erred in determining that the
social groups the IJ identified were not cognizable groups. She asserts that the
groups are immutable, particular, and socially distinct, see Rodas-Orellana, 780 F.3d
at 990-91. We need not consider immutability and particularity because social
distinction—the ground relied on by the IJ and the Board—is dispositive.
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Social distinction means that the group is perceived as a group by the society
in question. See id. at 991. It “requires that the relevant trait be potentially
identifiable by members of the community, either because it is evident or because the
information defining the characteristic is publicly accessible.” Id. (quotations
omitted). Ms. Akinfolarin argues that an Immigration and Refugee Board of Canada
report in the record demonstrates that the Ogboni are socially distinct. But that
misses the point. Ms. Akinfolarin must show the social distinctiveness not of the
Ogboni themselves, but of “individuals in Nigeria whose fathers have died and the
Ogboni Fraternity wants them to take their place” and/or “individuals that attempted
to stop the Ogboni Fraternity from burying or attending to a member in a manner
consistent with their traditions,” Admin. R. at 68. The Refugee Board report says
nothing about such groups, and Ms. Akinfolarin points to no other evidence in the
record to undermine the agency’s conclusion that the proposed groups are not
socially distinct.
Ms. Akinfolarin asserts that the social group her counsel argued on appeal to
the Board—the nuclear family unit of her and her father—was “essentially the same
as the IJ’s social group based on her relationship to her father,” Pet’r Br. at 23, and
therefore the Board erred in declining to consider that group after determining that it
was newly raised on appeal. But we agree with the Board that her nuclear family was
sufficiently different from the other groups so as to constitute a new proposed group
on appeal.
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Persecution on Account of Religion
Ms. Akinfolarin next challenges the determination that she was not persecuted
on account of her religion. She asserts that when she opposed the Ogboni’s removal
of her father’s body because she wanted to bury him in the Christian tradition, “[h]er
religious beliefs were made known and she was harmed on account of it.” Id. at 24.
“For persecution to be ‘on account of’ [a protected ground], the victim’s
protected characteristic must be central to the persecutor’s decision to act against the
victim.” Niang v. Gonzales, 422 F.3d 1187, 1200 (10th Cir. 2005); see also
§ 1158(b)(1)(B)(i) (requiring the asylum applicant to establish that a protected
ground “was or will be at least one central reason” for persecution). “[T]he protected
ground cannot play a minor role in the alien’s past mistreatment or fears of future
mistreatment. That is, it cannot be incidental, tangential, superficial, or subordinate
to another reason for harm.” Dallakoti, 619 F.3d at 1268 (quotations omitted). To
reverse the Board’s decision, “the record must establish that any reasonable
adjudicator would be compelled to conclude that one of the central reasons” the
Ogboni targeted Ms. Akinfolarin was because of her religion. Id.But it does not. Rather, the record contains substantial evidence that the
Ogboni harmed and threatened Ms. Akinfolarin not because she is a Christian, but
because she obstructed their efforts to achieve their own objectives. See
Orellana-Recinos v. Garland, 993 F.3d 851, 858 (10th Cir. 2021) (petitioner failed to
demonstrate nexus where “the gang’s ‘ultimate motivation’ was to recruit [her son],
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not to attack his family”); Rodas-Orellana, 780 F.3d at 996 (petitioner was subject to
harm not because of his membership in a particular social group, but because his
assailants wanted “to take his money or have him join the gang”); Dallakoti,
619 F.3d at 1268 (petitioner was threatened because he could supply resources to the
assailants, not because of his political opinion).2
B. Withholding of Removal
Because Ms. Akinfolarin fails to satisfy the burden of proof for asylum, she
also necessarily fails to satisfy the higher standard for withholding of removal. See
Zhi Wei Pang, 665 F.3d at 1234; Dallakoti, 619 F.3d at 1268.
C. CAT Relief
With regard to her CAT claim, Ms. Akinfolarin refers to her earlier discussion
of the IJ’s duty to develop the record and argues that “[t]here is insufficient evidence
to determine whether Nigeria may torture Ms. Akinfolarin because the IJ failed to
elicit sufficient testimony in this area.” Pet’r Br. at 30. Although she did not argue
this issue before the Board, it appears that this court may exercise jurisdiction over
the argument in the context of the CAT claim. See 8 U.S.C. § 1252(d)(1) (requiring
exhaustion of remedies with regard to “a final order of removal”); Nasrallah,
2
Having upheld the Board’s conclusion that Ms. Akinfolarin has not shown
persecution on account of a protected ground, we need not consider her argument that
the agency erred in concluding that the government of Nigeria is not unable or
unwilling to protect her.
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140 S. Ct. at 1691, 1694 (recognizing that an order denying CAT relief is not “a final
order of removal”). But even without a jurisdictional bar, our general rule is that we
do not entertain arguments for reversing an agency decision that are raised for the
first time in this court. See Garcia-Carbajal, 625 F.3d at 1237. Ms. Akinfolarin
gives us no reason to disregard that rule.
III. CONCLUSION
Ms. Akinfolarin’s motion to proceed without prepayment of costs and fees is
granted. The asylum and withholding arguments that were not raised before the
Board are dismissed for lack of jurisdiction, and the petition for review is otherwise
denied.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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